Swartzwelder v. Freeport Coal Co.

I would sustain the decree of the Circuit Court of Preston County, on the sole ground that the plea in abatement, filed by the defendant, failed to state that it had good defense to the suit in which the plea was filed. I do not consider it important, in this case, that the plea failed to negative notice of the suit, for the reason that the filing of the plea in itself, was positive evidence that the defendant had received actual notice thereof, and its president should not have been required to make oath to a plea, the filing of which would have convicted him of a false statement. The requirement that a plea, attacking the verity of the return of service of process, should negative notice becomes important only where there has been a default judgment or decree against one who seeks relief therefrom, and becomes important in such a case, because a decree or judgment of a court must be recognized as having some standing, and can not be set aside except for cause; and want of notice is one of the best of reasons for the setting aside of a judgment or decree, for, without notice, there is a lack of that due process of law guaranteed under our State and Federal Constitutions.

I do not think it can be questioned that prior to the decision of this Court in Nuttallburg Smokeless Fuel Co. v. *Page 281 First National Bank, 89 W. Va. 438, 109 S.E. 766, the so-called verity rule as to the return of process made by public officers, authorized to serve the processes of courts, and required to make return thereof, prevailed in this State, as it prevailed in Virginia prior to the separation. As early as 1808, in the case of Goodall v. Stuart, 2d Hen. M. 105, it was held: "In general, the return of the sheriff, of 'no effects', on an execution in favour of an assignee of a bond against the obligor, is sufficient to charge the assignor; so that, in an action against him, no proof that the obligor was not insolvent, can be admitted." Which, of course, is merely another way of saying that a return made by a sheriff on a court process or writ could not be contradicted. To the same effect is the case of Smith Rickard v. Triplett Neale, 4 Leigh 590. The first case in West Virginia on the question isLewis v. Botkin, 4 W. Va. 533. This was a case where a return was found to be defective in form, but, in the body of the opinion, it was stated: "Upon a motion to quash the return of an officer of the service of a summons, the truth of what is stated in the return, cannot be questioned." In Bowyer v. Knappand Martin, 15 W. Va. 277, Judge Johnson, in writing the opinion of the Court, said: "The law seems to be well settled, that an official return duly made upon process, emanating from the court or its officer, by a sworn officer in relation to facts which it is his legal duty to state in it, is, as between the parties and privies to the suit and others whose rights are necessarily dependent upon it, conclusive of the facts therein stated; but as to all other persons such return is prima facie evidence of such facts, and subject to be disproved whenever it is offered in evidence. But the privity spoken of must be such as would enable the party thus concluded to maintain an action against the officer for a false return to such process." The above quotation shows clearly that the Court intended to hold, that, as to official processes issuing from a court, the verity rule prevailed. In Stewart v. Stewart, 27 W. Va. 167, this Court held: "Where the sheriff has returned the process served on the defendants, and the court has ordered the bill taken for confessed as to them, and final decree has been entered *Page 282 in the cause, one of such defendants will not be permitted to contradict the return of the sheriff to such summons and show, that the process was not served on him in this State but in another state." In Rader v. Adamson, 37 W. Va. 582, 16 S.E. 808 this Court held: "An official return duly made upon process emanating from the court or its officer, by a sworn officer, in relation to facts which it is his legal duty to state in it, is, as between the parties and privies to the suit, and others whose rights are necessarily dependent upon it, conclusive of the facts therein stated." This holding is in almost the exact language employed in the opinion in Bowyer v. Knapp and Martin,supra. The holding of this Court in that case is so clear and explicit that its force cannot be weakened by ingenious speculation as to the actual basis of the holding. Plain words speak for themselves. In McClung v. McWhorter, 47 W. Va. 150,34 S.E. 740, this Court held: "An officer's return on judicial process cannot be contradicted by the parties or their privies as to such facts stated in it as the law requires to be stated, unless the party collude with the officer to make a false return. This rule prevails in law and equity. As to notices for depositions, or other notices not judicial process, the return is only prima facie evidence of such fact." In the opinion in this case, prepared by Judge Brannon, it was stated: "The bill relies on one ground only for relief; that is, that the return of the sheriff shows that he served the process on McClung by delivering it to Vonie Shauver, as a member of his family, and at his usual place of abode, whereas in fact she was not a member of his family, and the place of service was not at his usual place of abode. Thus, the proposition is to deny the facts stated in the sheriff's return. In many states this can be done, but in this State a sheriff's return on process emanating from the courts (judicial process) cannot be contradicted by parties or privies in its statement of such facts as the law requires him to state to make the return good. The party must, for reparation of his injury, look to an action against the sheriff on his bond for false return. This may seem hard, but public policy requires, for stability of judicial proceedings, that the return of the *Page 283 sworn officer stand. It is a long-established rule with us, and based on sound principles and policy." In Talbott v. SouthernOil Co., 60 W. Va. 423, 55 S.E. 1009, this Court held: "If a return of service of a summons commencing a suit is sufficient on its face, such facts stated therein, as it was the duty of the officer to set forth in it, cannot be put in issue by either a plea in abatement or a motion to set aside a judgment by default. For reasons of public policy, contradiction of such returns is not permitted in any form, except upon allegations of fraud or collusion."

Thus the law stood until 1921, when the case ofNuttallburg Smokeless Fuel Co. v. First National Bank, supra, was decided. In that case it was held that upon a proceeding to vacate a judgment, taken by default, in a case where there had been no notice of the pendency of the action in any manner or form, the return of the officer was only prima facie evidence of service, and might be overthrown where there was clear and convincing evidence that no legal service of the process had been made. That was a case where the First National Bank of Harrisville obtained a judgment against the Fuel Company and T. C. Beury, which, as alleged in the bill, was based upon a return of service made by the sheriff of Kanawha County on Thos. C. Beury, President of said Fuel Company, in Kanawha County, where the said Beury resided, whereas, the bill alleged, Beury was not at that time President of said corporation, and judgment was taken without any notice to the Fuel Company, of any character whatever. Judge Lively, who wrote the opinion in that case, discussed at length the origin and application of the verity rule, and it is clear, from the entire discussion of the case, that what the Court intended to do was to relax the verity rule only to the extent necessary to prevent injustice. Near the end of the opinion it is stated: "We have attempted in this opinion to draw a distinction in cases of judgment by default upon no notice either actual, presumptive or constructive; and where there has been notice and a technicality is relied upon, or where the defendant has appeared, and denies service, but has opportunity to *Page 284 defend. In the latter instance we would deny the right to question the return." It is clear, therefore, that what the Court held in that case was that where a defendant, either in law or equity, had notice of the suit or action, and an opportunity to defend, he could not attack the verity of the return, where there had been a judgment or decree. So far as I know, up to this date, that ruling has never been questioned by anyone.

When we consider cases raising this question, coming before this Court since the decision in the Nuttallburg case, we reach the case of Stepp v. The State Road Commission, 108 W. Va. 346,151 S.E. 180, in which, in the body of the opinion, we find this statement: "If there be process in the record on which the sheriff has made return showing service on a defendant, under the verity rule that return could not be questioned by extraneous evidence; hence it followed that the court's decree stating that process had been executed and returned was likewise a verity. But we have receded from the verity rule as to the sheriff's return, where it clearly and convincingly appears that the return is false. See Nuttallburg SmokelessFuel Co. v. First National Bank, 89 W. Va. 438, in which the reasons therefor are set out at length. The same reasons impel a modification of the doctrine of verity in the court's decree as to service and return of process, as exemplified in CentralDist. etc. Co. v. Ry. Co., 76 W. Va. 120, above referred to. It is not necessary to repeat or elaborate those reasons here. But we were careful to say in the Nuttallburg case that the evidence to overthrow an alleged false return should be clear, satisfactory and convincing; and that if the party attacking the return had actual, presumptive or constructive notice of the pendency of the suit against him he could obtain no relief against a default judgment." In Nelson Transfer Storage Co. v. Jarrett, 110 W. Va. 97, 157 S.E. 46 it was held: "In considering an officer's return of service of a summons, distinction must be drawn between cases of judgment upon no notice, actual, presumptive or constructive, and cases where there has been actual notice but a technicality *Page 285 is relied upon to defeat it, or where the defendant appeared, and denied service, but had opportunity to defend. In the former instances the return may be impeached; in the latter it may not." It should be noted that the syllabus point quoted is almost in the exact language of the holding of the Court in theNuttallburg case, showing an intent to limit the relaxation of the verity rule as stated in that case. Hatfield v. UnitedStates Coal and Coke Co., 111 W. Va. 289, 161 S.E. 572, was a case in which the return on a process was under attack, and the opinion contains this statement: "He relies upon the case ofNuttallburg Smokeless Fuel Company v. First National Bank ofHarrisville, 89 W. Va. 438, as abrogating the verity rule and permitting a collateral attack on the service of process in any case. In the Nuttallburg case, the process was served upon T. C. Beury as president of the defendant corporation. He had formerly held such position, but was not an officer of the company at the time of service. The return, therefore, was not false in the recital of the fact that it had been served upon the individual named, but was untrue in the assumption that he was then an officer of the corporation. Even in states adhering to the verity rule, attack is sometimes permitted upon the recitals in a service insofar as they assume facts. 'While a sheriff's return of service may be conclusive on the parties so far as it concerns the sheriff's physical acts, and as his recitals respecting the person on whom the service was made and the date thereof, it is not conclusive as to his conclusion of the law that the person on whom service was made represented the defendant in such capacity as to authorize service on him.'Higham v. Iowa Travelers' Association, 183 F. 845." The attack on the return was unsuccessful, and the above quotation is included herein to show that, in some instances, a return is subject to an attack where the statement of the officer serving process is based on an assumption of a fact which does not exist. In the case of Lanham v. Home Auto Company, 115 W. Va. 415,176 S.E. 604, decided in October 1934, it was held: "A sheriff's return of a writ or notice, showing proper service, is presumed to be true. Proof to overcome the presumption *Page 286 must be clear and convincing, and will be entertained only where the person affected had no actual notice of the pendency of the proceeding in which the return was made, and has just defense thereto." In this case an attempt was made to enjoin the enforcement of an execution, based on a judgment in favor of the Auto Company against Lanham, upon an alleged false return of service of process. It is quite clear that it was intended by that opinion, which was unanimous, to uphold the verity rule, except as the same had been modified by theNuttallburg case. This is the last case heretofore decided by this Court on the fundamental question of the Court's position on the verity rule.

In the case of Williamson v. Taylor, 96 W. Va. 246,122 S.E. 530, a summons was served by leaving a copy of a process posted at the front door of what was supposed to be the defendant's usual place of abode in Cabell County. The defendant filed his plea in abatement, alleging that, at the date of the service of the summons, he had no usual place of abode in Cabell County, and gave a better writ. It should be noted that in this case there is no contradiction of the officer's return that the process was served as stated therein. The point of the plea was that there had been a false assumption of fact that the place where the process was posted was the usual place of abode, of the person named as defendant, and, apparently, on this ground the plea was entertained and sustained. To the same affect is the case of Crouch v. Crouch, 124 W. Va. 331, 20 S.E.2d 169. This case implicitly, if not directly, permits the filing of a plea in abatement, where the claim is that a process was not posted at the usual place of abode of the person on whom service was sought, but goes no further, except to decide the question of fact raised by the plea.

It is upon the two cases, Williamson v. Taylor, supra, andCrouch v. Crouch, supra, that the majority opinion bases the conclusion that this Court has heretofore abandoned the verity rule. On the contrary, in my opinion, every decision of this Court, on the principal question, sustains the *Page 287 verity rule, except as the same is limited by the holding in the Nuttallburg case; and to state that the two cases mentioned above, which bear only upon the question of the assumption of the existence of a place of abode, and which do not, in any way, contradict the actual service, is to fly in the face of obvious facts, too clearly established to merit attempted contradiction. And then, what of the Stepp, Nelson Transfer,Hatfield and Lanham cases, all decided subsequent to the decision in the Williamson case. That, until the decision of the Court in the case at bar, this Court has consistently limited its repudiation of the verity rule to the very narrow limits laid down in the Nuttallburg case, should not be disputed, but if disputed cannot be established.

I do not question the right and power of the majority of this Court to abolish the so-called verity rule in its entirety. I do not think it should be abolished, but the majority of this Court has the right and power to declare the law in this State. But if it is to be abolished it should be done by a direct method, with the reasons therefor, and not by attempts to distinguish cases. Instead of attempts to distinguish, the cases in conflict with the present ruling should be overruled. In my opinion, the verity rule, based as it is on a sound public policy, and upon that respect which should be according to public officials, who take an oath to faithfully perform the duties of their offices, and are presumed to do so, should be upheld, except in cases where to enforce it in all strictness would entail a manifest injustice. I can very well understand how a court would be inclined to permit the strict application of the verity rule to be relaxed in a case such as theNuttallburg case, where the person against whom a judgment had been recovered, had not received notice of the suit, and had a good defense thereto. All agree that the rule has been relaxed to that extent. I see no reason why it should be further relaxed to permit people, who have had notice of a suit or action, and have no defense thereto, to question the solemn act of a public officer, who, has made what is assumed by law to be a correct return of service *Page 288 of a court process. What good purpose do we serve when we permit the filing of a plea impeaching the act of a public officer, when he who files the plea has had actual notice of the existence of the suit, or action, opportunity to defend, and has no defense thereto. We hear much of law's delays, and dilatory pleas are not favored. Shall we now make it possible for defendants, who have no defense to a suit or action, to delay judgment at will.

The verity rule having been so well established in this State, as I have, to a perhaps painful extent, endeavored to show, any relaxation thereof should, in the absence of Legislative action, be entirely within the control of the courts. We should, in my opinion, adhere to the rule, as modified by the Nuttallburg case, and, possibly, as modified by the Williamson v. Taylor, and Crouch v. Crouch cases. Certainly, in every case where a defendant appears in court, prior to judgment, and attacks the return of an officer, he has had notice of a suit or action, and, of course has opportunity to defend — why, then, should he be permitted to delay judgment or decree unless he is willing to state that he has a just defense; and, where judgment has already been entered, why should he not, on the basis of his prayer to have it set aside, be required to state, as a prerequisite to relief, that he has had no notice of the suit, no opportunity to defend, and that he has a just defense. No one can be injured by such a rule, and the danger of the use of pleas in abatement, as they may tend to delay judgment in judicial proceedings, will be obviated.

It must not be forgotten that a court can secure jurisdiction of the person of a defendant only by the service of process in a pending suit or action, and that service must conform to certain methods, which, with us, are prescribed by statute. When a suit or action has been instituted by the filing of a praecipe and the issuance of process, a general appearance therein takes the place of service of process. Even when there has been actual service in some form, a defendant has always been permitted to appear specially to attack the jurisdiction of the court, and under Code, 56-4-30, to question the validity of service *Page 289 of process, or present other extraneous matters which, if established, might abate the suit or action. But these rights are in a different category from the situation where, for example, it is sought to impeach the verity of an officer's return on a court process. In the one instance the right to use the plea in permissible cases is involved; in the other, the question is whether the plea, though permissible in practice, may be used to set up a defense which a defendant, on grounds of public policy, and for other reasons, is not permitted to make. In other words, the right to make a special appearance, and to file a plea in abatement, does not carry with it the right to include in that plea matters of defense prohibited by other rules of law or pleading, and in such a case the plea is subject to demurrer and should be overruled.

I do not question the right of the defendant in this suit to file a plea in abatement, within the rules governing the filing of such a plea. Code, 56-4-30, seems to provide for such a plea. But that section is not new, since it appeared in the Code of 1868, Chapter 125, Section 15 which reads: "In other cases, a defendant on whom the process summoning him to answer appears to have been served, shall not take advantage of any defect in the writ or return, or any variance in the writ from the declaration, unless the same be pleaded in abatement." But, to repeat, the mere existence of the right to file a plea in abatement, does not mean that that plea can reach matters against which no attack can be made, such as the verity of a return of process. This section was a part of the law of Virginia, included in the Codes of 1849 and 1860, and was in existence during all of the period when the verity rule was fixed and established both in this State and in Virginia. The provisions of the section cannot now be relied upon to justify an attack on the verity of the process return of an officer.

In this case, I would sustain the ruling of the Circuit Court of Preston County, on the sole ground that the defendant's plea in abatement failed to state that the defendant filing the same had a just defense to the suit in which it was filed. *Page 290